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May 16, 1994

 

 

Mr. David W. Kubissa
Executive Editor
Star-Gazette
201 Baldwin Street - PO Box 285
Elmira, NY 14902-9976

The staff of the Committee on Open Government is authorized to
issue advisory opinions. The ensuing staff advisory opinion is
based solely upon the facts presented in your correspondence.

Dear Mr. Kubissa:

I have received your recent letter and the correspondence
attached to it.

You have sought an advisory opinion concerning the propriety
of a denial access to certain records pertaining to the City of
Elmira's revaluation project. Specifically, in response to a
request by one of your reporters, the City Manager prepared the
following remarks:

"With respect to paragraph '1', requesting
copies of all 'status reports' between 1993 to
the present from Theresa F. Pickett regarding
the City's revaluation project, such reports
are non-final 'status' reports which do not
contain or constitute final City
determinations. Such reports are between the
State of New York Division of Equalization and
Assessment Central Regional Office and the
City Manager and are therefore interagency
reports which contain pre-decisional materials
and information prepared to assist the
Assessor and the City. These reports are
exempted from disclosure pursuant to Public
Officers Law, §87(2)(g). Accordingly, your
request for these is denied.

With respect to paragraph '2', your specific
request is for documentation describing how a
revaluation would have affected City tax
bills, including 'shift analysis
statistics...' and 'summaries, memorandums,
etc. between any City officials and Coles &
Burin Appraisal Associates, Inc...' The
information obtained by the City's appraisal
contractor is pre-decisional until such time
that the information is adopted by the
Assessor. In addition, the contract between
the City and the appraisal company provides
that the company's work is required by the
contract have been delivered to the Assessor
and certified as complete by the Assessor and
the New York State Department of Equalization
and Assessment. This has not yet occurred.
As for 'shift analysis statistics' and/or
'tables', any such information is intra-agency
or interagency materials which are pre-decisional and non-final and which do not
contain final policy determinations of the
City. For those reasons, the information
sought under paragraph '2' is exempt from
disclosure pursuant to Public Officers Law
§87(2)(g). Therefore, your request is
denied."

From my perspective, whether the data in question is
characterized as "non-final" or as inter-agency material or has not
been "accepted" is not determinative of the City's ability to
withhold the data. In this regard, I offer the following comments.

First, it is emphasized that the Freedom of Information Law
pertains to agency records, and that §86(4) of that statute defines
the term "record" expansively to include:

"any information kept, held, filed, produced,
reproduced by, with or for an agency or the
state legislature, in any physical form
whatsoever including, but not limited to,
reports, statements, examinations, memoranda,
opinions. folders, files, books, manuals,
pamphlets, forms, papers, designs, drawings,
maps, photos, letters, microfilms, computer
tapes or discs, rules, regulations or codes."

The Court of Appeals, the State's highest court, has
construed the definition as broadly as its specific language
suggests [see e.g., Westchester Rockland Newspapers v. Kimball, 50
NY 2d 575 (1980); Washington Post v. Insurance Department, 61 NY 2d
557 (1984); Capital Newspapers v. Nassau County Community College,
81 NY 2d 690 (1993)]. Based upon those decisions and the language
of the Law, it is clear in my view that information existing in
some physical form that is kept, held or produced by or for an
agency constitutes a "record" subject to rights of access. Even if
the materials in question are non-final or have not yet been
adopted, I believe nonetheless that they are records that must be
disclosed to the extent required by the Freedom of Information Law.

Second, as a general matter, the Freedom of Information Law is
based upon a presumption of access. Stated differently, all
records of an agency are available, except to the extent that
records or portions thereof fall within one or more grounds for
denial appearing in §87(2)(a) through (i) of the Law.

Third, I agree that communications between the City and a
State agency would constitute inter-agency materials and that
communications between the City and a consulting firm that it has
retained would consist of intra-agency materials. While those
kinds of records fall within §87(2)(g), which is one of the grounds
for denial, it is likely that significant portions of the records,
due to the structure of that provision, must be disclosed.

Specifically, §87(2)(g) authorizes an agency to withhold
records that:

"are inter-agency or intra-agency materials
which are not:

i. statistical or factual tabulations or
data;

ii. instructions to staff that affect the
public;

iii. final agency policy or determinations;
or

iv. external audits, including but not
limited to audits performed by the comptroller
and the federal government..."

It is noted that the language quoted above contains what in effect
is a double negative. While inter-agency or intra-agency materials
may be withheld, portions of such materials consisting of
statistical or factual information, instructions to staff that
affect the public, final agency policy or determinations or
external audits must be made available, unless a different ground
for denial could appropriately be asserted. Concurrently,
those portions of inter-agency or intra-agency materials that are
reflective of opinion, advice, recommendation and the like could in
my view be withheld.

In a discussion of the issue of consultant reports, the Court
of Appeals stated that:

"Opinions and recommendations prepared by
agency personnel may be exempt from disclosure
under FOIL as 'predecisional materials,
prepared to assist an agency decision
maker***in arriving at his decision' (McAulay
v. Board of Educ., 61 AD 2d 1048, aff'd 48 NY
2d 659). Such material is exempt 'to protect
the deliberative process of government by
ensuring that persons in an advisory role
would be able to express their opinions freely
to agency decision makers (Matter of Sea Crest
Const. Corp. v. Stubing, 82 AD 2d 546, 549).

"In connection with their deliberative
process, agencies may at times require
opinions and recommendations from outside
consultants. It would make little sense to
protect the deliberative process when such
reports are prepared by agency employees yet
deny this protection when reports are prepared
for the same purpose by outside consultants
retained by agencies. Accordingly, we hold
that records may be considered 'intra-agency
material' even though prepared by an outside
consultant at the behest of an agency as part
of the agency's deliberative process (see,
Matter of Sea Crest Constr. Corp. v. Stubing,
82 AD 2d 546, 549, supra; Matter of 124 Ferry
St. Realty Corp. v. Hennessy, 82 AD 2d 981,
983)" [Xerox Corporation v. Town of Webster,
65 NY 2d 131, 132-133 (1985)].

Based upon the foregoing, the Court in Xerox specified that the
contents of intra-agency materials determine the extent to which
they may be available or withheld, for it was held that:

"While the reports in principle may be exempt
from disclosure, on this record - which
contains only the barest description of them -
we cannot determine whether the documents in
fact fall wholly within the scope of FOIL's
exemption for 'intra-agency materials,' as
claimed by respondents. To the extent the
reports contain 'statistical or factual
tabulations or data' (Public Officers Law
section 87[2][g][i], or other material subject
to production, they should be redacted and
made available to the appellant" (id. at 133).

Therefore, inter-agency or intra-agency materials or records
prepared by a consultant for an agency would be accessible or
deniable, in whole or in part, depending on their contents. In my
view, insofar as the records in question consist of advice,
recommendations or opinions, they could be withheld. However, to
the extent that they consist of statistical or factual data, for
example, I believe that they would be available, unless a different
ground for denial could be asserted.

I point out, too, that it has been held that factual
information appearing in narrative form, as well as those portions
appearing in numerical or tabular form, is available under
§87(2)(g)(i). For instance, in Ingram v. Axelrod, the Appellate
Division held that:

"Respondent, while admitting that the report
contains factual data, contends that such data
is so intertwined with subject analysis and
opinion as to make the entire report exempt.
After reviewing the report in camera and
applying to it the above statutory and
regulatory criteria, we find that Special Term
correctly held pages 3-5 ('Chronology of
Events' and 'Analysis of the Records') to be
disclosable. These pages are clearly a
'collection of statements of objective
information logically arranged and reflecting
objective reality'. (10 NYCRR 50.2[b]).
Additionally, pages 7-11 (ambulance records,
list of interviews) should be disclosed as
'factual data'. They also contain factual
information upon which the agency relies
(Matter of Miracle Mile Assoc. v Yudelson,
68 AD2d 176, 181 mot for lve to app den 48
NY2d 706). Respondents erroneously claim that
an agency record necessarily is exempt if both
factual data and opinion are intertwined in
it; we have held that '[t]he mere fact that
some of the data might be an estimate or a
recommendation does not convert it into an
expression of opinion' (Matter of Polansky v
Regan, 81 AD2d 102, 104; emphasis added).
Regardless, in the instant situation, we find
these pages to be strictly factual and thus
clearly disclosable" [90 AD 2d 568, 569
(1982)].

Lastly, in a decision cited earlier, the Court of Appeals
discussed the scope and intent of the Freedom of Information Law
and found that:

"Key is the Legislature's own unmistakably
broad declaration that, '[as] state and local
government services increase and public
problems become more sophisticated and complex
and therefore harder to solve, and with the
resultant increase in revenues and
expenditures, it is incumbent upon the state
and its localities to extend public
accountability wherever and whenever feasible'
(emphasis added; Public Officers Law, section
84).

"...For the successful implementation of the
policies motivating the enactment of the
Freedom of Information Law centers on goals as
broad as the achievement of a more informed
electorate and a more responsible and
responsive officialdom. By their very nature
such objectives cannot hope to be attained
unless the measures taken to bring them about
permeate the body politic to a point where
they become the rule rather than the
exception. The phrase 'public accountability
wherever and whenever feasible' therefore
merely punctuates with explicitness what in
any event is implicit" [Westchester-Rockland
Newspapers, supra, at 579].

To be consistent with the intent of the Freedom of Information
Law and its broad interpretation by the state's highest court, I
believe that the City must give effect to the Law so as to "extend
public accountability wherever and whenever feasible."

In an effort to enhance compliance with and understanding of
the Freedom of Information Law, copies of this opinion will be
forwarded to City officials.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:pb

cc: Hon. Howard F. Townsend, Mayor
Samuel F. Iraci, Jr., City Manager